RAM DAS CHOUBE Vs. MUSAMMAT SIMIRKHA KUAR

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiffs for redemption of a mortgage, dated Magh Badi 13th, 1293 fasli (1886) made by Nimar, father of Gobardhan, the sixth defendant. The property mortgaged is a tenancy at fixed rates and the amount secured by the mortgage is Rs. 99-15-0. By the terms of it the mortgagee is to remain in possession and enjoy the rents and profits in lieu of interest, and redemption is to take place on payment of the principal amount in the month of Jeth. The plaintiffs are transferees from the sixth defendant Gobardhan and as such seek to redeem. The defence to the suit was that there were two other mortgages, the amounts secured by which the plaintiffs were bound to pay before they could redeem the mortgage in question.

(2.) The Court of first instance held that the plaintiffs sale deed being a registered document took priority over the two mortgages set up by the defendants which are unregistered and that the plaintiffs had no notice of those mortgages. It made a decree for redemption on payment of the amount of the mortgage of 1886.

(3.) On appeal the lower appellate Court found that the plaintiffs had notice of the two unregistered mortgages, dated respectively Asarh Badi 15 1949, and Magh Badi 10 1953 put forward by the defendants. That is a finding of fact and must be accepted in second appeal. The plaintiffs, therefore, must be held to have had notice of these two mortgages and cannot take priority over them by reason of their sale-deed being a registered document. The lower appellate Court was of opinion that the two documents referred to above created a further charge on the property and that the plaintiffs were not competent to redeem without payment of the amounts due upon those mortgages. It accordingly made a decree for redemption conditional on the payment of Rs. 552-4-0, the amount found by it to be due on account of all the three mortgages.